Case Law Update: Criminal Act Of Third Party

The Illinois Appellate Court recently overturned the dismissal of a criminal act of third party case.  The twist is that the offending party was an employee of the hotel where the victim was staying.

In Gress v. Lakhani Hospitality, Inc., 2018 IL App (1st) 170380, the plaintiff was a hotel guest and after drinking and eating in the hotel restaurant she returned to her room, where she was subsequently raped by a hotel security guard/maintenance worker.  The plaintiff brought a premises liability case against the hotel owner/manager, the director of operations and the franchisor.  She also sued the offender, and sued his employers for negligent hiring, training and supervision.

The case was filed in Cook County and the motion court judge was Judge Kathy Flanagan.  Judge Flanagan dismissed the premises liability counts with prejudice, as well as the negligent hiring, retention, training and supervision counts pursuant to Section 2-615.  The unrepresented alleged offender was left as the lone defendant.  The plaintiff appealed pursuant to Rule 304(a).  The appellate court did not completely agree with Judge Flanagan and the dismissal of the premises liability counts was reversed.

Relevant Facts (all derived from the Fourth Amended Complaint):

  • Plaintiff had a drink at the hotel bar.
  • Plaintiff alleged the offender placed a narcotic substance in her drink without her knowledge .
  • Offender had a key to the plaintiff’s room because he was a hotel security guard and maintenance worker.
  • Offender was directed to enter the plaintiff’s room and repair a faulty air conditioner unit.
  • Offender raped the plaintiff while she was unconscious in her room.
  • Once the plaintiff awoke she realized she had been sexually assaulted and a rape kit proved there was DNA from the offender.
  • Offender continued to work for the defendant owner/operator of the hotel for years after this incident.
  • Plaintiff alleged that prior to her incident, guests reported stolen property; employees took women into hotel rooms and gave them alcohol; prostitutes frequented the hotel and bar; employees disabled surveillance cameras for improper purposes and a guest reported a sexual assault.
  • Plaintiff alleged that two months after her incident, another hotel guest had drinks at the bar, was approached by two males, later awoke in a hotel room naked but did not recall portions of the evening and reported being raped to the police.

Defendants filed a Rule 2-615 motion to dismiss, which only looks at the allegations set forth in the complaint. A court should only dismiss a complaint under section 2-615 where no set of facts can be proved, which would entitle the plaintiff to recovery. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006).

The appellate court first looked at duty and whether the plaintiff and defendant stood in such a relationship to one another that the law imposes on the defendant an obligation of reasonable conduct for the benefit of the plaintiff.  While generally speaking, the owner or possessor of property does not owe a duty to protect invitees from the criminal acts of third parties, however, a notable exception to this is if a special relationship exists between the parties, such as, in this case, an innkeeper and its guests, a common carrier and its passengers, a voluntary custodian and ward, or a business invitor and invitee. Iseberg v. Gross, 227 Ill. 2d 78, 88 (2007); see also Restatement (Second) of Torts § 314A (1965).

However, before a duty can attach, a defendant must know or should know of the unreasonable risk of injury.  This is another way of saying that the defendant must know of the chance of injury or the possibility of harm, i.e. foreseeability.  Whether the rape in this case could have been reasonably anticipated by the hotel owner and its employees, and was thus foreseeable, forms the crux of the parties’ contentions on appeal. See Bruns v. City of Centralia, 2014 IL 116998, ¶ 33 (“something is foreseeable only if it is objectively reasonable to expect”).

Plaintiff argued it was foreseeable and the defendant created the dangerous condition because the offender was directed to go to the plaintiff’s room and fix the air conditioner when it was known she was intoxicated.  In response, the defendants argued that for there to be foreseeability there must be prior instances of conduct similar in nature and there were no reported sexual assaults by the offender or any other employee on the property.

The court relied on the Illinois Supreme Court case, Marshall v. Burger King Corp., 222 Ill. 2d 422 (2006) to address foreseeability.  Relying on Marshall, the court ruled that due to the hotel-guest special relationship pleaded in this case, the defendants owed an affirmative duty to the plaintiff to protect her against third-party criminal attacks. It also ruled the allegations established the owners and its management should have known the offender could have entered the plaintiff’s room without her consent and then taken advantage of her. The court noted, “at this early stage in the pleadings, foreseeability, or defendants’ quality of being able to reasonably anticipate the risk of physical harm, was satisfied by conferring on the parties their special relationship of hotel-guest.”

The fact that the incident involved a hotel employee seemed to be a big factor in why the court would not find the event accept no prior similar acts as making this act not foreseeable.  The court noted it was declining to impose the “one free rape rule.”

The last paragraph of the opinion as to the premises liability claim seems to sum up the court’s feeling of why it would not affirm the dismissal:

“All of the preceding cases of rape, battery, assault, and murder clearly have many factual variables, but the facts of this case tell an all-too-familiar tale where a vulnerable woman is raped and the assault is enabled by the failure of a responsible party to protect the victim. Plaintiffs deserve the opportunity to expand on their story beyond the pleading stage, and the trial court erred in dismissing the counts of plaintiffs’ complaint against the owner, operator, and manager of the hotel and its involved employees.”

This will be an interesting case to watch because it will likely reach the summary judgment stage next year.